[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Rules and Regulations]
[Pages 6765-6768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02321]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 82
[EPA-HQ-OAR-2015-0309; FRL-9941-82-OAR]
RIN 2060-AS68
Protection of Stratospheric Ozone: Revisions To Reporting and
Recordkeeping for Imports and Exports
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action on minor conforming edits to
the stratospheric protection regulations to implement the International
Trade Data System. This system allows businesses to transmit the
transactional data required by multiple Federal agencies for the import
and export of cargo through a single ``window.'' As businesses
currently must submit trade data to multiple agencies, in multiple
ways, and often on paper, the transition to electronic filing is
expected to save businesses time and money. Specifically, this rule
removes the requirement that the petition for used ozone-depleting
substances accompany the shipment through U.S. Customs and removes
references to Customs forms that are obsolete under the new system.
DATES: This rule is effective on May 9, 2016 without further notice,
unless EPA receives adverse comment by March 10, 2016. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that the rule will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2015-0309, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.
FOR FURTHER INFORMATION CONTACT: Jeremy Arling by regular mail: U.S.
Environmental Protection Agency, Stratospheric Protection Division
(6205T), 1200 Pennsylvania Avenue NW., Washington, DC, 20460; by
telephone: (202) 343-9055; or by email: [email protected]. You may
also visit the EPA's Ozone Protection Web site at www.epa.gov/ozone/strathome.html for further information about EPA's Stratospheric Ozone
Protection regulations, the science of ozone layer depletion, and other
related topics.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Why is EPA using a direct final rule?
EPA is publishing this rule without a prior proposed rule because
we view this as a noncontroversial action and anticipate no adverse
comment. This rule is intended to make minor changes like the removal
of references to U.S. Customs forms that will no longer be available
when the electronic International Trade Data System is implemented.
However, in the ``Proposed Rules'' section of today's Federal Register,
we are publishing a separate document that will serve as the proposed
rule to make these edits if adverse comments are received on this
direct final rule. We will not institute a
[[Page 6766]]
second comment period on this action. Any parties interested in
commenting must do so at this time. For further information about
commenting on this rule, see the ADDRESSES section of this document.
If EPA receives adverse comment, we will publish a timely
withdrawal in the Federal Register informing the public that this
direct final rule will not take effect. We would address all public
comments in any subsequent final rule based on the proposed rule.
B. Does this action apply to me?
This rule may affect the following categories: Industrial Gas
Manufacturing entities (NAICS code 325120), including fluorinated
hydrocarbon gas manufacturers, importers, and exporters; Other Chemical
and Allied Products Merchant Wholesalers (NAICS code 424690), including
chemical gases and compressed gases merchant importers and exporters;
and refrigerant reclaimers or other such entities that might import
virgin, recovered, or reclaimed refrigerant gas.
This list is not intended to be exhaustive, but rather to provide a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility, company, business, or
organization could be regulated by this action, you should carefully
examine the regulations promulgated at 40 CFR part 82, subpart A. If
you have questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding section.
C. Overview of the International Trade Data System
In 2006, U.S. Customs and Border Protection (CBP) began automating
processes for the import and export of goods to improve the control of
what enters and leaves the U.S., as well as to improve efficiency.
Launched under the Security and Accountability for Every Port Act of
2006 (SAFE Port Act, Pub. L. 109-347) and the 2007 Import Safety
Executive Order 13439, the multi-agency program called the
International Trade Data System (the ITDS) assists 48 Federal agencies
with import/export responsibilities in their efforts to integrate
import and export cargo processing with CBP's Automated Commercial
Environment (ACE) for imports, and the Automated Export System (AES)
for exports.
On February 19, 2014, the White House issued E.O. 13659 titled
``Streamlining the Export/Import Process for America's Businesses.''
Under E.O. 13659, participating agencies must have all requirements in
place and in effect to utilize the ITDS, which includes the ACE and the
AES systems for receiving documentation required for the release of
imported cargo and the clearance of cargo for export, no later than
December 31, 2016.
Under the ITDS, agencies with existing paper-based import and
export clearance procedures at the port of exit or entry are working
with CBP to enable electronic filing and processing of the import or
export shipments based on one set of submitted data that can then be
checked against all relevant U.S. agency requirements.
D. Overview of Import Requirements Under the Stratospheric Protection
Program
The Montreal Protocol on Substances that Deplete the Ozone Layer
(Montreal Protocol, or Protocol) is the international agreement to
reduce and eventually eliminate the global production and consumption
\1\ of ozone-depleting substances (ODS). This goal is accomplished
through adherence by each Party to the Protocol to phaseout schedules
for specific controlled substances. The Montreal Protocol is
implemented in the United States through Title VI of the Clean Air Act.
EPA issues allowances for the production and consumption of ODS under
sections 604 and 605 of the Clean Air Act. An allowance represents the
privilege granted to a company to produce or import one kilogram of the
specific substance in a given year. EPA establishes the number of
allowances issued to companies through rulemaking. EPA maintains a
balance of unexpended allowances through the ODS Tracking System based
on production, import, and export data reported to the Agency
quarterly.
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\1\ ``Consumption'' is defined as the amount of a substance
produced in the United States, plus the amount imported into the
United States, minus the amount exported from the United States to
other Parties to the Montreal Protocol (see section 601(6) of the
Clean Air Act).
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At the present time, allowances are required for the import of
class II controlled substances, all of which are hydrofluorocarbons
(HCFCs), and for the import of methyl bromide for critical uses.
Allowances are not required, however, for the import of used controlled
substances. Used controlled substances are defined as ``substances that
have been recovered from their intended use systems (may include
controlled substances that have been, or may be subsequently, recycled
or reclaimed)'' (40 CFR 82.3). Imports of used controlled substances
are regulated under Sec. 82.13(g)(2) (for imports of used Class I
controlled substances) and Sec. 82.24(c)(3) (for imports of used Class
II controlled substances). Persons seeking to import used controlled
substances are required to submit a petition to the Agency. The
petition to import a used controlled substance must contain detailed
information such as the previous use of the substance, including the
identity of all previous source facilities from which the material was
recovered. After review, EPA issues either a ``non-objection notice''
allowing the import to proceed or an ``objection notice'' prohibiting
the import.
II. How is EPA integrating ODS import and export requirements with the
ITDS?
For purposes of the ITDS, there are three pathways for the import
of ozone depleting substances: Imports that require allowances; Imports
that require a ``non-objection'' notice issued by EPA; and imports that
do not require any documentation to be reviewed by CBP officers. The
distinctions between these three categories relate to the type of
documentation reviewed by CBP upon entry of the shipment. In all
instances the recordkeeping and quarterly and/or annual reporting
requirements under 40 CFR part 82, subpart A continue to apply.
A. Imports That Require Allowances
Importers are not required to present documentation of allowances
to CBP upon import. Some companies choose to include allowance balance
statements provided by EPA with documentation accompanying the import.
This is not a requirement of EPA's regulations but is done by the
importer to facilitate the entry of the shipment. Under the ITDS,
providing a paper copy of an allowance statement will be unnecessary as
information being provided for the CBP entry and TSCA certification
parts of the filing allow EPA to verify whether the importer has an
allowance for the import.
EPA is not changing the reporting and recordkeeping requirements in
40 CFR part 82, subpart A to integrate these ODS imports into the ITDS.
Importers are not required to provide a statement of allowances to CBP
and this would not change under the ITDS.
B. Imports That Require a Non-Objection Notice
For imports of used controlled substances, current regulations
require that the petition and non-objection notice ``accompany the
shipment through U.S. Customs.'' EPA is removing the requirement that
the petition accompany the shipment through U.S. Customs. EPA does not
[[Page 6767]]
believe that the detailed information in a petition to import used ODS
is necessary for CBP to make a determination about whether the import
should enter the U.S. EPA's decision to allow an import of used ODS is
stated in the non-objection notice. Therefore, EPA would still require
that the non-objection notice accompany the shipment through Customs.
One component of the ITDS is the Document Image System (DIS) which
allows the importer or their broker to file and an agency to view the
image of a document, as it appears on paper, without paper needing to
physically be provided. Under the ITDS, the non-objection notice would
be filed to the DIS. Because this document would be available to CBP,
EPA finds that filing a non-objection notice to the DIS meets the
requirements in Sec. 82.13(g)(3)(v) and Sec. 82.24(c)(4)(v) that the
non-objection notice ``accompany the shipment.'' Therefore, the only
change EPA is making to the recordkeeping and reporting requirements in
40 CFR part 82, subpart A to implement the ITDS is to remove the
requirement that the petition accompany the shipment.
C. Imports Without CBP Documentation
A third category of ODS imports do not require verification by CBP.
These include ODS that fall under the following exemptions: Imports for
purposes of transformation or destruction; imports for laboratory and
analytical uses; heels or transshipments; and methyl bromide imported
under the quarantine and preshipment exemption. EPA is not making any
changes to the reporting and recordkeeping requirements in 40 CFR part
82, subpart A to integrate these ODS imports into the ITDS.
D. Other Changes To Conform to the ITDS
EPA is making minor changes to the stratospheric protection
regulations at 40 CFR part 82, subpart A, to remove references to U.S.
Customs Service forms that will no longer exist when the ITDS is
implemented.
Definition of Importer
The definition of importer at 40 CFR 82.3 and 82.104 includes the
importer of record ``listed on U.S. Customs Service forms'' for the
import. The definition of importer would still include the importer of
record but because CBP will no longer be maintaining forms, EPA is
removing the clause referencing the Customs Service forms. This change
does not affect the scope of who would be considered an importer for
the purposes of 40 CFR part 82.
Recordkeeping and Reporting Requirements
The recordkeeping and reporting requirements at 40 CFR 82.13(g)(1)
and 82.24(c)(2) state that an importer of Class I and Class II
controlled substances, respectively, must maintain the U.S. Customs
entry form. Under the ITDS, the entry form will no longer exist. EPA
uses the Customs entry form to verify that a shipment of ODS has been
properly imported into the United States. EPA believes that some type
of verifying information is necessary and to the benefit of the
importer if the origin of the controlled substance is ever in question.
In order for the Agency to identify an individual shipment within the
ITDS, EPA is replacing the requirement to keep a record of the Customs
form with the requirement to keep a record of the entry number. This
will still be generated by the ITDS and will help EPA to identify the
specific shipment within the ITDS.
Similarly, the recordkeeping and reporting requirements at 40 CFR
82.13(g)(3)(viii) and 82.24(c)(4)(viii) state that an importer of used
Class I and Class II controlled substances, respectively, must maintain
the U.S. Customs entry documents for the import. For the reasons
discussed above, EPA is removing the recordkeeping requirements for the
U.S. Customs entry documents but is substituting the requirement to
maintain the entry number for the shipment of used ODS.
In addition, reporting requirements for exporters of class II
substances under Sec. 82.24(d)(2) (related to export production
allowances) or Sec. 82.24(d)(3) (related to Article 5 allowances)
reference the Shipper's Export Declaration Form and U.S. Customs Form
7525 as locations for the Employer Identification Number (EIN) of the
shipper or their agent. EPA is removing references to these two forms
but is maintaining the requirement that the EIN be provided.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA because the requirements to maintain entry numbers and
EINs are a subset of the previous requirements to maintain forms
containing this information. OMB has previously approved the
information collection activities contained in the existing regulations
and has assigned OMB control number 2060-0170 and 2060-0438.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action makes minor changes to
recordkeeping and reporting requirements to remove references to U.S.
Customs forms and other small edits.
D. Unfunded Mandates Reform Act
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local or tribal governments or the private sector. This action merely
makes minor changes to recordkeeping and reporting requirements to
remove references to U.S. Customs forms and other small edits.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. This rule does not significantly or uniquely
affect the communities of Indian tribal governments, nor does it impose
any enforceable duties on communities of Indian tribal governments.
This action makes minor changes to recordkeeping and reporting
requirements to remove references to U.S. Customs forms and other small
edits. Thus, Executive Order 13175 does not apply to this action.
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G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. This action makes minor changes to
recordkeeping and reporting requirements to remove references to U.S.
Customs forms and other small edits.
I. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes the human health or environmental risk addressed by
this action will not have potential disproportionately high and adverse
human health or environmental effects on minority, low-income, or
indigenous populations because it does not affect the level of
protection provided to human health or the environment. This action
makes minor changes to recordkeeping and reporting requirements to
remove references to U.S. Customs forms and other small edits.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 82
Environmental protection, Administrative practice and procedure,
Air pollution control, Chemicals, Imports, Ozone, Reporting and
recordkeeping requirements.
Dated: January 21, 2016.
Gina McCarthy,
Administrator.
For the reasons stated in the preamble, 40 CFR part 82 is amended
as follows:
PART 82--PROTECTION OF STRATOSPHERIC OZONE
0
1. The authority citation for part 82 continues to read as follows:
Authority: 42 U.S.C. 7414, 7601, 7671-7671q.
0
2. In Sec. 82.3, revise the definition for ``Importer'' to read as
follows:
Sec. 82.3 Definitions for class I and class II controlled substances.
* * * * *
Importer means any person who imports a controlled substance or a
controlled product into the United States. ``Importer'' includes the
person primarily liable for the payment of any duties on the
merchandise or an authorized agent acting on his or her behalf. The
term also includes, as appropriate:
(1) The consignee;
(2) The importer of record;
(3) The actual owner; or
(4) The transferee, if the right to draw merchandise in a bonded
warehouse has been transferred.
* * * * *
0
3. In Sec. 82.13, revise paragraphs (g)(1)(xii), (g)(3)(v), and
(g)(3)(viii)(D) to read as follows:
Sec. 82.13 Recordkeeping and reporting requirements for class I
controlled substances.
* * * * *
(g) * * *
(1) * * *
(xii) The U.S. Customs entry number;
* * * * *
(3) * * *
(v) To pass the approved used class I controlled substances through
U.S. Customs, the non-objection notice issued by EPA must accompany the
shipment through U.S. Customs.
* * * * *
(viii) * * *
(D) The U.S. Customs entry number.
* * * * *
0
4. In Sec. 82.24, revise paragraphs (c)(2)(xiii), (c)(4)(v),
(c)(4)(viii)(D), (d)(2)(i), and (d)(3)(i) to read as follows:
Sec. 82.24 Recordkeeping and reporting requirements for class II
controlled substances.
* * * * *
(c) * * *
(2) * * *
(xiii) The U.S. Customs entry number;
* * * * *
(4) * * *
(v) To pass the approved used class II controlled substances
through U.S. Customs, the non-objection notice issued by EPA must
accompany the shipment through U.S. Customs.
* * * * *
(viii) * * *
(D) The U.S. Customs entry number.
* * * * *
(d) * * *
(2) * * *
(i) The Employer Identification Number of the shipper or their
agent;
* * * * *
(3) * * *
(i) The Employer Identification Number of the shipper or their
agent; and
* * * * *
0
5. In Sec. 82.104, revise paragraph (m)(2) to read as follows:
Sec. 82.104 Definitions.
* * * * *
(m) * * *
(2) The importer of record;
* * * * *
[FR Doc. 2016-02321 Filed 2-8-16; 8:45 am]
BILLING CODE 6560-50-P